In an update to his post on the legality of the confiscation of firearms in New Orleans, David Kopel takes issue with my view that "controlling the possession" of firearms includes the power to take the possession of firearms. He writes:

The most serious problem is that [Kerr] reads the power of "regulating and controlling" as equivalent to the power of "prohibiting and controlling." By his theory, the Louisiana legislature could just as well have said "controlling" instead of "prohibiting and controlling" and the legislature still would have granted the power of prohibiting. In an abstract semantic sense, Orin's theory is not implausible. But the Louisiana legislature obviously used the words more precisely; the repeated shifts from "regulating" to "prohibiting" plainly show that the two words are not identical, and that adding "and controlling" after each word does not create identical phrases. If the Louisiana legislature meant to convey the same powers over each of the items in subsection (A), the legislature would have used the same operative words in each subsection.

I don't think that's right. The lines between the different key phrases used in the statute aren't clear, but I don't think David's reading is the most natural interpretation of the state-of-emergency statute.

Here's my thinking. The statute we are discussing, La. Stat., title 14, § 329.6, is located in the Louisiana Code's section on criminal laws. Thus, refusal to obey a valid order during a state of emergency can lead to criminal charges for failure to obey the order. See, e.g., State v. Gauthier, 263 La. 678, 269 So.2d 204 (1972). Given that the power to create emergency orders is the power to create enforceable criminal laws, I think the most natural reading of the power to "prohibit" the possession of an item is that it refers to the power to make possession of the item a criminal offense. That is, it is the power to arrest people and charge them with crimes for possessing the item prohibited.

As fas as I can tell, this isn't what happened in New Orleans. There was no confiscation order prohibiting the possession of guns, which would have permitted the police to arrest people with guns and charge them with the crime of gun possession. Rather, the state officials were ordering individuals to hand over possession of their guns to the police. Whether this was a good idea or the beginning of the New World Order, as a matter of textual plain meaning it seems more an effort to "control the possession" of firearms than an effort to "prohibit the possession" of firearms.

At the risk of repeating myself, my point is narrow. I don't have particular views on whether the confiscation order was an appropriate step, and I am quite open to arguments that it may have violated other laws. (I am particularly eager to hear David's argument for why it is inconsistent with the Universal Declaration of Human Rights.) But it seems to me that we shouldn't let our substantive views of the wisdom of the confiscation order cloud the legal question of whether it violated Louisiana law.

The two prhases are not necessarily mutually exclusive, but your analysis goes to the other extreme, and seems to treat them as identical.

Controlling and regulating possession certainly allows for some seizing of firearms, but prohibition is a blanket ban. I think the blanket probition now in place in N.O. conflicts greatly with the language of the statute. If regulation and controlling can include prohibition, why would the legislature not have explicitly provided for that alternative?

"But it seems to me that we shouldn't let our substantive views of the wisdom of the confiscation order cloud the legal question of whether it violated Louisiana law."

Orin, how can we take this call for clarity seriously when you have ignored the LA Constitution? Would that "cloud" your conclusions, so you just ignore it?

As I have noted twice already in the main text and once already in a comment directed specifically to you, I am concerned here only with responding to David Kopel's point that the order violated the Louisiana state of emergency statute. I am open to hearing arguments on the state Constitutional question, but David has not yet made that argument.

Actually, I think that Prof. Kerr's conclusions are based on the federal law arguments and not the state law arguments. He has already indicated he doesn't know about La. constitutional law and Mr. Kopel never made the state constitution claim in any event. Given that Prof. Kerr is responding to Mr. Kopel, it makes sense not to raise the issue.

Of course, given the interpretation the La. Supreme Court has put on the statute, it is very possible that given the current circumstances, this is reasonably related to public safety and therefore meets the requirements of the La. Constitution. The point has never been litigated in this context.

Guys, I'm a logician, not a lawyer. That said, though, it would seem this reading of the statute would allow pretty much any order to be made to have the effect of criminal law. Not just taking possession of weapons, but potentially of food and water (Nagin's argument that delivering water would encourage people to stay suggests this, and there are more than a few claims that food and water has been confiscated), or possession of more than, say, $50 in cash (because having more than that suggests you may have either obtained it illicitly or have illicit purposes in mind.)

Can it really be that the intent of the law was to make failure to obey effectively any arbitrary order into a criminal offense, and to permit most any confiscation without compensation or due process?

"As I have noted twice already in the main text and once already in a comment directed specifically to you, I am concerned here only with responding to David Kopel's point that the order violated the Louisiana state of emergency statute. I am open to hearing arguments on the state Constitutional question, but David has not yet made that argument."

The comment on this thread was written before you responded in the other thread or at least before I read it. It was not my intent to badger you on that one point. But in response: I don't know why one has to be an "expert" on the LA Constitution to have an opinion on how a clear right should be read. After all, you're not an expert in the history of the statute you decided to address, right? Yet you have offered your opinion of the reasonableness of Kopel's argument. If your non-expert opinion is good enough to comment on the statute, why not the Constitution of LA as well?

I think Kopel's tone was a bit aggressive, but this is a passion for him. I don't think he's weighed the exceptionality of the circumstances, or how the mandatory evacuation augments the rights implicated or the emergency statute.

As far as the difference between regulation/controlling and prohibition, I think what can be said on that has been said.

A couple of quick (and minor) points - left here since Mr. Kopel doesn't enable comments. He wrote: "The Second Amendment, even if unincorporated, would be the basis of a section 1983 claim against any federal employees involved in the confiscation." Technically, that'd be a Bivens action.

I also think Mr. Kopel is misreading the Kellogg case. If the state confers upon someone the right to keep and bear arms, it might create a property interest. Assuming it does, then the suit would be a procedural due process suit. Of course, I think that a court, applying Matthews v. Eldridge, would find a post-deprivation remedy suitable. (What process can you give when trying to clear out a city?) Anyhow, the suit would not be actionable necessarily because the state conferred an individual right to bear arms; rather, we'd first have to ask whether, in so doing, the state created a property interest in the actual firearm.

I'm being a bit hypertechnical here, and I apologize for that. But in 1983 law, the devil really is in the details.

the statute in question here makes clear the grant of authority to certain public officials to *promulgate orders* that fall under any or all of the 9 areas addressed, the statute does not become the controlling order- it only opens the door for orders to be promulgated.

the question of legality is first to be that of the specific order that the official promulgates and without that being done there is no furtherance of conclusion whether the statute means one thing or another. this statute only opens a door- not posts a gaurd at the door.

let us see the actual specific order as written and then we may debate whether the order is based on lawful authority under the statute or not. the statute is not the order.

I'm certainly not familiar with all of them, but my impression is that regulation includes prohibition. The Congressional power to "regulate" interstate commerce seems to authorize the "prohibition" of marijuana.

Slowilly, the argument is around whether the statute can legally permit, under the U.S. Constitution, the chief law enforcement officer to promulgate an order to confiscate all firearms from citizens in Orleans parish.

If the argument for such an order fails at this level of abstraction, then no such order can be promulgated that would be valid. If, however, the argument for such an order succeeds at this level, THEN we can look at a specific order to see if there is an argument that it specifically is impermissible. The analysis just isn't there yet. I can't find the text of the disarmament order, so I can't tell you what it says in any event. The police commissioner just *did* it without publication (which might make the order unenforceable, or at least give a hell of an affirmative defense to people charged with violating it).

thanks john for the info. the point i sense being missed here is without the order being based upon a specific right/authority of one to verbally claim a right without the supporting evidence of that right is inherently flawed and to then leave it to the citizenry to have to bear the cost of proving no right is not due process or rule of law. this statute not just allows for but requires written orders that may then be challenged before a court and the basis for the order(s) is for the order giver to prove right of such order- not for others to prove no right. from what i am aware no such right of anyone to just verbally proclaim an order allowing for confiscation has been lawfully established let alone specifically granted.

I have been reading the original posts on "regulating, prohibiting and controlling" with some amusement but with considerable sadness over the state of American law. Given the conditions in New Orleans the legality of the police orders is IRRELEVANT. I repeat: IRRELEVANT. That lawyers get their panties all twisted in a knot over this issue is ludicrous.
That "The police commissioner just *did* it without publication (which might make the order unenforceable, or at least give a hell of an affirmative defense to people charged with violating it)." is of no moment whatsoever.

What is relevant is maintaining law and order. If "illegally" confiscating arms will help, then do it and don't worry whether the violators will have a "hell of an affirmative defense". By the time one of those people who make their living by getting rich on the miseries of others (they like to call themselves lawyers) gets his hands on the case, the danger of possessing arms will have passed and the guns can be returned and the prosecutor will not file the complaint.

Consider the large number of arrests at many protest demonstrations for violations of this or that ordinance only to have most of the violators released the next day. The purpose of the original arrest was accomplished: it got some of the protesters off the street and intimidated some of the others; and law and order (usually) prevailed. Mission accomplished. All very much in the tradition of American law enforcement. To say that the order is "unenforceable" is quite humorous. If the police enforce it is enforceable! So I would suggest to you who get all excited about this minutia to get a life and find an issue that needs solving instead if inventing a new niche for the sharks to pursue.

Since Kopel was responding to my post in his last paragraph, and didn't allow comments, I'll place my response here. The issue of the President's power to confiscate guns in an emergency is not at issue here; I only raised it because some of the commenters to Orin's post seemed to believe that there's no situation where the government could possibly confiscate guns legally. I will say that I am not sure Kopel is right that the President has to declare martial law or there has to be an "actual rebellion" to do this. The commander-in-chief power is probably not dependent on either a formal declaration of martial law or an "actual rebellion", but rather the President's determination of an emergency that justifies its exercise, a determination that would probably be unreviewable.

But getting to his main point, which was that an order confiscating guns would be ultra vires and thus would be per se illegal and could not be justified under ANY level of scrutiny, I'd like to see some caselaw in support of that. My understanding is that when the government acts, and that action implicates your constitutional rights (whether under the 1st, 2nd, 4th, 5th, 6th, 8th, 9th, 14th, or any other Amendment or provision of the Constitution proper), the constitutionality of that action is judged based on the appropriate level of scrutiny. We don't know what level of scrutiny will be applied to gun confiscation orders during an emergency, but his assumption that it will be held to be per se illegal-- given the generally weak protection that Second Amendment rights currently receive-- seems to me to be ridiculous as a statement of current law.

As for what the law SHOULD be, I would assume that given the fact that the Second Amendment clause itself refers to a "well regulated" militia, any assumption by pro-Second Amendment advocates that there's ever going to be per se bans on any form of gun control is probably way out of line. (Especially given that the more categorical First Amendment-- Congress shall make NO law-- is not given an absolutist interpretation.) At most, there's going to be strict scrutiny. More likely, there's going to be something less than strict scrutiny.

And whatever the level of scrutiny, the New Orleans authorities are going to be afforded a chance to justify their actions under the governing test. Nothing is going to be per se illegal, especially during this sort of an emergency.

The test, under the La. Constitution, is whether the regulatory action is reasonably related to preserving the health, safety, and morals of the people.

Donald, no tyrant has ever justified his actions any other way. Lawyers who "get their panties all twisted" do so because when the government ignores restrictions imposed by the people we're that much closer to the collapse of liberal society. Maybe you're fine with that. I'm not. The order does nothing to make anyone safer, except maybe the N.O.P.D. who are burglarizing local businesses.

Unless somebody slipped something in there when I wasn't looking, the federal Constitution only authorizes two actual emergency powers:

1. To suspend habeus during rebellion or invasion, but this power is specifically delegated to Congress, NOT the President.

2. To call up the Militia in the event of insurrection or invasion. ALSO a power delegated to Congress, not the President.

Now, you could, just barely, have characterized the armed looters as insurrectionists, but that doesn't change the fact that the President has no Constitutionally delegated "emergency powers". And that the only, single, solitary constitutional right that can be suspended in an emergency is the right of habeus corpus. Not freedom of the press, not the right to keep and bear arms, not the right to be free from unreasonable searches, JUST the right of habeus corpus.

As for what the law SHOULD be, I would assume that given the fact that the Second Amendment clause itself refers to a "well regulated" militia, any assumption by pro-Second Amendment advocates that there's ever going to be per se bans on any form of gun control is probably way out of line.

That sounds suspiciously close to an assumption that the 2nd Amdt. is well accepted as a collective, as opposed to an individual, right. I dare say that that is one Constitutional assumption that is not well accepted in at least this forum, as evidenced by voluminous writings of conspirators Volokh, Koppel, et al.

John J: I doubt very much that what motivates lawyers is the fear of the collapse of social liberty or social liberalism. Few have the morals or ethics for such lofty rationales. "Give me liberty or a large check (or both)". The true principles of Thomas Paine long ago were subsumed by the principles of greed and egocentricity in the legal profession.

The order certainly does make people safer: especially the NO police department personnel who have been subject to sniper fire at their various substations. Whether they were or were not looting has nothing to do with confiscation of firearms. But we can talk about who does the real looting in this country!

Nevertheless, the objective is to restore and maintain law and order. The confiscation of firearms is eminently reasonable and justifiable given the circumstances and, on its face, meets a reasonable test of preserving the health, safety and morals of the people as you stated. The question doesn't really merit argument, which is my point.

John Jenkins mentions an LA Supreme Ct. case in the previous thread that would seem to indicate that reasonable gun control is allowed - indicating to me a rational basis level of scrutiny, at least at the LA level.

Re Donald B. Le Messurier:
"The order certainly does make people safer: especially the NO police department personnel who have been subject to sniper fire at their various substations." How so? What makes you think the people in their homes who are losing their firearms are the same people shooting at rescue workers? What really bothers me as much as the blatant disregard of consitutional rights is that essentially the city of NO first told the people still there, "you are on your own. We will not protect you. We will not protect your property. We will not be here. Protect yourself." So some of the people and neighborhood survived because they own firearms. Now that most of the danger has passed, the very same people who refused to even attempt to protect these people are now banging on the door, demanding their firearms.

The "commander-in-chief" power, at its base, has to mean the power to direct the military to do those things that militaries are implicitly empowered to do. Thus, the President can create, for instance, rules of engagement that allow the military to shoot people who attack army bases. There doesn't need to be a declaration of war, or a suspension of habeas corpus. The President can simply do that, because he is commander-in-chief. Or he can delegate it. (Some other commander-in-chief powers are probably non-delegable.)

So your premise that the only thing that the Constitution permits the federal government to do in an emergency is for Congress to declare war and suspend habeas corpus is false. The framers didn't spell out all of the powers that are implicit in the concept of a military-- but that is different from saying they don't exist.

I am very suspicious, by the way, of issuing a blank check to the President during wartime. I think some of the issues that have come up in the war on terror (e.g., Guantanamo, Jose Padilla, etc.) have shown that there's a strong case for reading limits into the commander-in-chief power even in the case of war (where the President really is commanding the military). And perhaps, some limit on the power to impinge on Second Amendment rights is appropriate based on those concerns and on the importance of being able to bear arms in an emergency.

But to say that every "emergency power" is a usurpation of power is to ignore the fact that to create a military, and to put the President in charge of it, is to confer to the President the power to do those things that militaries traditionally do, which include emergency response. (Indeed, the framers, not having something like FEMA in mind, probably envisioned that any emergency that overwheled state and local agencies WOULD be handled by the military under the commander-in-chief power.) And specifically, in emergencies, militaries traditionally have the power to issue evacuation orders, detain people, secure buildings and facilities, and shoot people who are threatening the public safety. The question would be whether gun confiscation could be considered within that ambit of military power in times of emergency.

Remember, this is not what the officials actually did in New Orleans. And what they did is not governed by the commander-in-chief power. But to argue that the commander-in-chief power means nothing is to adopt an overly rigid reading of the Constitution that ignores the practical realities-- which the framers understood-- of how to set up a government.

I believe that the Second Amendment should be read to protect an individual right to bear arms. The "collective right" reading is absurd.

Where I think some pro-Second Amendment advocates stumble is in automatically assuming that because the "well regulated militia" language does not mean that there is no individual right (which is correct), it doesn't mean anything at all.

I would hold that even without the "well regulated militia" language, the Second Amendment's language would not mean that all gun control is unconstitutional, any more than the First Amendment means that all restrictions on expression are unconstitutional. But with that language, it seems to me ENTIRELY clear that the framers contemplated an individual right that was subject to regulation.

In other words, that language is incompatible with a test that would AUTOMATICALLY invalidate certain types of gun controls. Rather, the courts would pick a level of scrutiny and invalidate only those regulations that fail that scrutiny (because those regulations would not serve a "well regulated" militia, but rather a badly regulated one).

I can think of plenty of gun controls that I think are unconstitutional, e.g., assault weapons bans, or the D.C. gun ban, because I don't think they would meet any serious level of judicial scrutiny. I can think of others that I believe are constitutional, because they are justifiable measures to regulate the militia, e.g., waiting periods and background checks.

But I think too many Second Amendment advocates assume that once the individual right is recognized, all gun control goes away. It doesn't.

Dilan Esper, use of the Military for civilian applications in the United States is severely restricted by law. The Posse Comitatus Act prevents using the military in a law enforcement function.

That's why it was important initially that the local police and NG bring the area under control. The exceptions deal with nuclear material and things expressly authorized by the Constitution or the Congress. The commander in chief power is not specific enough to allow the use of the military in this manner (otherwise the law is meaningless).

At any rate, the President's powers don't extend to the powers of the state officials to take away firearms.

Bruce, I'm not sure it would come down that way; I just don't know. It could go either way.

Donald, I apologize. I had thought you were serious. I took you that way and that was an obvious mistake. Sometimes the trolls are hard to see under their bridges.

The Posse Comitatus statute (which I did not deal with because my posts focused on the constitutional questions) prohibits the use of the military in domestic law enforcement activities. I doubt it would be interpreted as constraining the commander-in-chief power in an emergency, however. Under Ashwander v. Tennesee Valley Authority, at the very least, it would take a specific and clear statement by Congress that it intended to restrict the military's powers in an emergency (and even then it might not be constitutional). The Posse Comitatus statute is anything but specific and clear. (And in answer to your point about the commander-in-chief power, it does not have to be specific-- it is in the Constitution and is the "supreme law of the land".)

In addition, I am not sure that the types of confiscation orders we are talking about are even within the scope of the Posse Comitatus statute. "Law enforcement" may mean arrests and detentions, not confiscations of property.

Finally, as I recall, the prevailing interpretation of the statute is that it does not restrict the military's participation in state and local law enforcement efforts. So, even if generally applicable to this situation, it might mean no more than that the military has to coordinate with local law enforcement.

None of this renders the Posse Comitatus law meaningless. In non-emergency peacetime situations, the military is prohibited from arresting and detaining people on US soil unless it is a joint operation with the approval of state and local officials. A statute is not meaningless just because it doesn't prohibit what you would like it to.

I never said the President's powers extend to state officials' power to confiscate firearms. I said that state GOVERNORS may have a similar power as commander-in-chief of the state militia, and also that state officials' acts would be constitutional if they passed whatever the appropriate level of scrutiny is for Second Amendment violations.

The reason I brought up the President was because of grandiose statements by some that the Second Amendment does not admit of any situation where the government would have the power to confiscate firearms. I thought the President's powers would be the obvious counter-example that everyone would accept.

"A statute is not meaningless just because it doesn't prohibit what you would like it to." Your sarcasm doesn't help you and you have no, read ZERO idea what I'd like or wouldn't.

Your argument seems to be that the Posse Comitatus Act is an unconstitutional infringement on the powers granted to the President. Okay, I'll buy that, has it ever been litigated? If the President sent in the Army after the next hurricane and the Army arrested people, would those who did the arresting, and those who gave the orders be punishable under 18 USC § 1385? If not, why not?

That seems to be EXACTLY what the Congress was driving at with the Act, and given that the federal government is one of enumerated powers; the President can always have only done what the Constitution allowed or the Congress told him he could do and the Act does nothing to constrain the President. That seems to make the Act meaningless to me. If I have misrepresented your argument, please correct me.

I was tweaking you because you were saying that the statute wouldn't have any meaning unless it constricted the military from EVER having a law enforcement role. I pointed out that this might give the statute a different meaning than the one you had argued for, but that isn't the same thing as the statute having no meaning at all.

The statement, as you note, was sarcastic. I wasn't trying to speculate as to what you did or didn't mean; I was simply making the above point (about the difference between changing the meaning and rendering a statute meaningless) in a cutesy way.

On the merits, I don't think the Posse Comitatus statute is facially unconstitutional. I do think it raises a serious constitutional question as applied to the President's orders to the military in a time of emergency. The point of the Ashwander case that I cited is that a statute isn't given an interpretation that raises a serious constitutional question unless Congress makes a clear statement that it wishes to force the issue. In this case, Congress would have to pass a statute saying "the President shall have no power to order the military to make arrests during a time of national emergency". If Congress passes that statute, it either applies to the situation or is unconstitutional. The issue of whether Congress can constrain presidential action during an imminent emergency is one of the toughest, mainly unanswered questions of constitutional law.

The Posse Comitatus statute, which says nothing about emergencies, does not contain the clear statement necessary to force the issue and therefore doesn't apply to situations where there is a serious question as to its impingement on Presidential powers to act in an emergency.

With respect to your hypothetical, if the President declares a national emergency due to the hurricane, and sends the military in under that premises, that action will likely be upheld as unreviewable in court. If the President does it in a New Orleans-like situation-- i.e., massive flooding, tens of thousands of displaced persons, widespread looting, etc.-- it would not even be a close call.

By the way, just for your information, nobody seems to know if violations of the Posse Comitatus statute are even reviewable. We know under the Ker-Frisbie (Ker v. Illinois, Frisbie v. Collins, United States v. Alvarez-Machain) doctrine that you can't get released from custody just because your detention was illegal, if the government has probable cause to hold you anyway. Given that, it's not at all clear that the Posse Comitatus restrictions are even enforceable in court. That's probably why there is little caselaw as to what the statute actually means.

Finally, yes, the government is one of enumerated powers. But the commander-in-chief power is one of those powers, and though not unlimited, it is-- in times of national emergency-- extremely broad, and courts have given Presidents substantial deference in exercising it. So your premise that the President has to get Congress' permission to act is, with respect to military action in response to an emergency, quite wrong. As I said, I think that it is reasonably inferrable that the framers of the Constitution fully expected that the Army and Navy would handle disaster relief that overwhelmed state and local authorities, and that certainly is a historical role of the military. Given that, by granting the President near-plenary authority to command the military, they clearly granted him the power utilize the powers traditionally assumed by the military in these situations.

A government of enumerated powers does not mean that every power has to be specifically spelled out in detail-- we must remember, as Chief Justice Marshall told us, that it is a Constitution that we are expounding.

The difference in interpretations seems to be whether (1) we can draw a line between prohibit and control based on "no one can possess" vs. "some limitations on possession" or we can draw a temporal line based on "no one can possess at all, ever" and "no one can possess, just for a while" (i.e., police will impound, but return after emergency passes).

I have a problem with (2) in that a temporal limit is inherent in an emergency order anyway. I believe the quotes I've seen from the LA law impose an outer time limit -- 5 days? -- so that quite a short time limit is imposed, however one construes control vs. prohibit. Thus I think the legislature could not have had a temporal limit in mind when it chose between the two words.

Assuming, of course, that the legislature had anything in mind, that it had a mind, or that it chose between the two words. But that is, of course, at the heart of all legislature interpretation....

You said, "Assuming, of course, that the legislature had anything in mind, that it had a mind, or that it chose between the two words. But that is, of course, at the heart of all legislature interpretation...."

The canons of statutory construction are chock full of amusing legal fictions, aren't they?